R v RBN[2024] QCA 185

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Bond JA.
2. [2]
   BOND JA: On 17 October 2023 an indictment was presented against the present applicant which relevantly alleged that, contrary to s 352(1)(a) of the Criminal Code, on 8 June 2021 at Mount Coot-tha in the State of Queensland, he had unlawfully and indecently assaulted the complainant. 
3. [3]
   Proof of that offence would have required proof of these three elements:

   1. he had assaulted the complainant by touching her directly or indirectly without her consent;
   2. the assault was unlawful in the sense that it was not authorised, justified or excused; and
   3. the assault was indecent, in the sense that judged in the light of time, place and circumstances, it would offend against what the community regards as indecent.
4. [4]
   The prosecution determined not to proceed in relation to the indictment as so formulated.  The prosecution determined to amend the indictment to allege that, contrary to s 335 of the Criminal Code, on 8 June 2021 at Mount Coot-tha the applicant had unlawfully assaulted the complainant.  Proof of that offence would require proof only of the first two of the three elements previously required.
5. [5]
   The matter was listed for sentencing. 
6. [6]
   On 22 March 2024, the prosecution asked for return of the indictment and amended it in the manner just indicated.  Consistently with the nature of the amendment, the prosecution informed the Court that the count was “amended  … to delete the element of indecency” so that “the Crown’s not alleging any sexual element to the assault”.  The applicant was then arraigned and pleaded guilty to the amended count on the indictment. 
7. [7]
   Sentencing proceeded by reference to an agreed statement of facts and a victim impact statement read by the complainant.  During the course of submissions, the Crown repeated that “there is no allegation of sexual element to [the] touching”. 
8. [8]
   Despite the Crown’s repeated disclaimer of any suggestion of a sexual or indecent component to the common assault, the statement of facts and the victim impact statement were framed so as to convey that there was such an aspect.  That was particularly so in relation to the victim impact statement.  I observe:

   1. The complainant was a photographic model and actress aged 23 at the time of the offence.  The applicant was a photographer.  Both were users of an online platform called “StarNow” which connected models to modelling opportunities.
   2. Having contacted the complainant via the online platform the applicant made an arrangement with her to meet at Mount Coot-tha for a photo shoot.  The agreed statement of facts stated that there was no mention of nudity in the arrangements.
   3. During the course of the day the two proceeded to a bushland location near to Mount Coot-tha and a photo shoot proceeded professionally during the next 45 minutes in which the applicant photographed the complainant wearing different outfits and adopting various poses.
   4. At the applicant’s suggestion, they then moved to a different bushland location nearby at which time the applicant suggested and the complainant “reluctantly” agreed to photographs of her wearing a corset and underwear. 
   5. After some photographs were taken of the complainant dressed in that manner, the applicant suggested that she agree to be photographed on the ground fully naked.  Although she initially said she was not “comfortable” doing that, she “eventually relented”. 
   6. She laid on the ground, fully naked, with one knee bent.  He draped her underwear over her toe and took a photograph from the direction of her foot.  He told her that her genitals were not in focus.  He told her to lift her bottom.  He placed some fake flowers on her vagina.  The circumstances in which the assault occurred were then in narrow compass:

“He then touched her body, without her consent, by slowly running his fingers up from her groin across her stomach area to her breasts.  He did not touch her breasts.”

7. After the assault occurred the complainant pulled away from the applicant without speaking, told him she wanted to leave; he tried to convince her to stay; but she “fabricated” an excuse and they walked back to his car whereupon he drove her back to her car and they departed from each other.
8. The Crown submitted that it relied on the complainant’s victim impact statement only in relation to the complainant’s description of the harm caused to her.  The complainant’s victim impact statement was to the following effect:

“This offending has had a profound impact on me.

I came into this interaction with very little trust already. I lacked self-confidence and was hoping to build myself up not just professionally but personally. I wanted to feel beautiful, but every woman ought to know, what is beauty if not painful?

In a way I am humbled now to see it with clarity, not as a commodity but a curse, the defendant taught me that much. Aside from never working in the modelling or performing arts industry, as has long been my aspiration, I can no longer have my picture taken by another person without recalling this incident and how disgusting it made me feel. How much I have grown to hate the things about me that make me a desirable or easy target. I can’t look into a camera lens without feeling a strong sense of panic. Since this happened, I am incapable of receiving a compliment without expecting the worst from people. I will also never enjoy the beauty of any botanic garden again because it makes me sick to think about them.

Going through this process is enough suffering to break down even the most resilient of us.

The nature of this offending, the lack of remorse surrounding it and the process of seeking justice for it has cultivated fear and invalidated more than just me.

It is naive to hope that any kind of sanction would be commensurate to the harm caused by this, but I hope it could significantly acknowledge not just my attitudes towards this kind of conduct but would consider the greater good and public interest in mitigating the potential risk for future harm similar to what has been endured.”

9. The agreed statement of facts went on to record that the complainant complained to her mother and to her aunt.  She submitted a complaint to “StarNow”.  Further, she told the administrator of a Facebook photography group of which the applicant was a member that he had arranged her hands on her body and touched her in the process.   She spoke to him and he mentioned to her that his profile on “StarNow” had been blocked.  He said he thought she might have been the cause.  She asked, “So you believe it’s totally about the naked photos then?” and he replied in the affirmative.  She then made a formal complaint to police.  He agreed to be interviewed by police but denied threatening or touching her.  He also denied that she was naked during the photo shoot.

9. [9]
   At the sentencing hearing, counsel for the Crown submitted that a fine or a community service order would be an appropriate penalty.  Counsel for the applicant agreed.  The principal issue at the sentencing hearing was whether a conviction should be recorded.  Counsel for the Crown submitted that it was open to the sentencing judge to record a conviction, but also conceded that it was open to the sentencing judge not to record a conviction.  Counsel for the applicant submitted that not recording a conviction was the appropriate course. 
10. [10]
    During the submissions before the sentencing judge the Crown submitted that the nature of the touching was deliberate; degrading; and was an invasion of the complainant’s bodily privacy.  It was done in circumstances which amounted to an exploitation of the complainant’s vulnerability.  Another concerning feature was that there was a professional environment.  It was this combination of features that might cause the court to contemplate the recording of a conviction.
11. [11]
    For the applicant’s part, his counsel submitted:

    1. The applicant was born in India; came to Australia in 2008 and was an Australian citizen.  
    2. He lives with his wife of 20 years and also his daughter aged 10.
    3. He was also an amateur photographer who had done a significant number of shoots.  He no longer engaged in photography.
    4. He works as an IT professional and had done for some 23 years. He had a master’s degree and a number of postgraduate degrees beyond that. 
    5. He has had to undergo criminal history checks with respect to contracts to work in the IT field.  If a conviction was recorded, he would not be able to tender for those contracts in his usual employment and that would have a significant effect far disproportionate to the appropriate penalty that would need to be imposed.
    6. He presently worked full time in the IT field and was awaiting a response to two further contracts, one with a large banking institution and one with a large travel provider. 
    7. Recording a conviction would affect his ability to find employment with large corporations as an IT consultant.  In the past he has undertaken contracts with a large telecommunications company and a large accounting firm and he had employment pending with a large bank.  The court would understand and expect that a person applying for high level IT project management roles within companies such as that would undergo checks of that nature.
12. [12]
    In relation to the latter submission, the sentencing judge inquired whether the Crown would dispute that those types of checks were ordinarily done in that type of situation and Crown counsel responded that she required the applicant to prove that aspect of his submission.  In support of his submission the applicant’s counsel:

    1. tendered a Government form entitled “Contingent Worker Consent Form” apparently relevant to the possible engagement of the applicant as a worker being engaged by Government agencies from time to time which provided for the worker to consent to criminal history checks in relation to roles for which he might be put forward;
    2. tendered a Government interview confirmation email which related to the possible engagement of the applicant as a project manager for a Government agency and which, amongst other things, notified the applicant of the requirement to complete a form consenting to a criminal history check;
    3. submitted that as the applicant’s work had extended to other Government and quasi-government agencies (which were identified in the submissions), the Court would infer that if a conviction was to be recorded, his ongoing contracts of the nature of those which he had mentioned would be “impacted significantly”; there would be a significant financial cost to him if he was not able to tender for relevant contracts, which would be borne by he and his family; and that effect would be disproportionate.
13. [13]
    The sentencing judge’s attention was drawn to the terms of s 12 of the Penalties and Sentences Act 1992 (Qld).  The sentencing judge would have appreciated that an exercise of his sentencing discretion was required and that in so doing he was required to have regard to all circumstances of the case, including the nature of the offence (s 12(2)(a)); the applicant’s character and age (s 12(2)(b)); and the impact that recording a conviction would have on his economic or social wellbeing; or on his chances of finding employment (s 12(2)(c)).
14. [14]
    The sentencing judge’s attention was also drawn to R v Lister [2009] QCA 368, R v ZB [2021] QCA 9, and R v Kowalczyk [2021] QCA 154.  The first and third of those cases are exemplars of cases in which this Court has emphasised the breadth of the sentencing discretion to be exercised when consideration is given to the matters s 12 makes relevant.  However, they are cases which involved materially different offending than the present case.  The second of those cases was a case in which Sofronoff P gave explicit attention to the purpose of the discretion created by s 12.  His Honour thought that the principal goal of the balancing process called for by s 12 was to choose the outcome which was of greater benefit to the community and remarked that a sentencing judge must consider the potential benefits and detriments to the community of adopting either course.  His Honour’s remarks have since been referred to with approval in this Court (e.g. R v OAB [2024] QCA 51 and R v Graham [2023] QCA 125) and in the New South Wales Court of Criminal Appeal (R v AB [2022] NSWCCA 3).
15. [15]
    In his sentencing remarks in the present case, the sentencing judge:

    1. stated he had had regard to the agreed statement of facts and the victim impact statement. 
    2. summarised the agreed facts, recording the act relied on as constituting the offence in this way:

“when you were positioning some fake flowers on the complainant’s body, near her vagina, you touched the complainant’s groin and her stomach. That conduct was deliberate and involves a breach of trust. The Crown has discontinued a charge of indecent or sexual assault and proceeded with this charge of common assault instead.”

3. recorded that the applicant was aged 46 at the time of the offending; aged 48 at the time of sentencing; had no criminal history; pleaded guilty and facilitated the administration of justice and expressed some remorse;
4. recorded that the applicant had worked in the IT industry for 23 years, held relevant tertiary qualifications and worked full time in that industry;
5. recorded that:

“You have been contracted in the past to large companies like [the identified large telecommunications company and large accounting firm], and it is submitted that the recording of a conviction would have a significant adverse effect on your ability to apply for contract work with large companies or government organisations in your work as an IT consultant, as many require a criminal history check to be completed.”

6. in relation to the question of whether a conviction should be recorded stated:

“I have been referred to and take into account to the extent that they are relevant, the Court of Appeal cases of R v Kowalczyk [2021] QCA 154, R v Lister [2009] QCA 368, and R v ZB [2021] QCA 9.

The Crown submits that a community-based order is appropriate in the form of either a fine or community service, and that it is open in the circumstances to record a conviction.

Your counsel submits that there should be a fine or a community service order, but that I should not, in all the circumstances, record a conviction.

In deciding whether to record a conviction, I have taken into account the nature of this offence, your age and otherwise good character, and the impact recording a conviction will have on your economic and social wellbeing, or chances of finding employment.

But balancing the relevant considerations, I make the following orders. I order that you be fined a total amount of $1500. You are to pay the fine on or before the 22^nd of June 2024. You may apply prior to the date due for payment for a fine option order if your financial position changes so that you are unable to pay the fine or your family will suffer economic hardship and you are a suitable person to do community service instead. The conviction is recorded.”

16. [16]
    The applicant now seeks leave to appeal against his sentence with a view to setting aside that part of the sentence which recorded a conviction. 
17. [17]
    In support of the application, the applicant also sought leave to adduce further evidence in the form of an affidavit by him filed 29 August 2024.  Using the distinction explained by this court in R v Spina [2012] QCA 179, the affidavit was a combination of new evidence and fresh evidence. As to this:

3. (a)
   The evidence was fresh evidence in the sense that it stated that he was presently unable to apply for work because of criminal history check requirements and provided some documentary exemplars supporting that assertion.

3. (b)
   The evidence was new in the sense that it –

3. (i)
   provided further detail as to his past work history in the IT field;

3. (ii)
   explained that in a number of contracts he has been “required to comply with a criminal history check, and background security checks” and provided further documentary exemplars of that requirement;

3. (iii)
   explained that it was a significant financial drain on his family for him to be out of work and totally reliant on his wife’s income.

3. (c)
   I will return to the question whether and, if so, on what issues the affidavit should be received.

18. [18]
    Although the applicant advanced a multiplicity of grounds in support of his submission that the sentencing discretion miscarried, in my view it is necessary to consider only one, namely that the sentencing judge erred in the failure to provide reasons of what was weighed up as the relevant balancing factors as required by s 12 of the Penalties and Sentences Act 1992 (Qld) and/or R v ZB.  In my view the inadequacy of his Honour’s reasons in relation to his decision to record a conviction is an error of law which justifies the conclusion that his sentencing discretion miscarried.
19. [19]
    It must be acknowledged that the sentencing discretion requires an instinctive synthesis to be performed having regard to the relevant considerations.  Further, in many if not most cases the explanation of why the balancing of the relevant considerations favoured the conclusion reached could be expressed in a relatively brief, if not summary way.  Nevertheless, in the particular circumstances of this case, the expression of reasons required more than was done.  Some points about the sentencing remarks should be made. 
20. [20]
    First, although the sentencing judge noted that the Crown had discontinued the charge of indecent sexual assault and proceeded with the charge of common assault, he made no mention of the Crown’s repeated and specific disclaimer of the allegation of any sexual element of the touching.  To my mind the tension between the express disclaimer of any sexual element and the form of the agreed statement of facts and of the victim impact statement which apparently advanced a sexual element called for a more precise articulation of the significance of the nature of the offence to the issue of recording a conviction. 
21. [21]
    Second, although the sentencing judge referred to the cases to which reference has already been made, he said that he had taken them into account “to the extent they are relevant”, without identifying what extent he actually found them to be relevant.
22. [22]
    Third, while the sentencing judge’s reasons refer to the nature of the submission made to him by the applicant as to the impact of recording a conviction, he actually made no finding at all on the extent to which the impact that recording a conviction would have on the applicant’s economic or social wellbeing or on his chances of finding employment.  I make the following observations:

    1. The submissions advanced to the sentencing judge on behalf of the applicant are recorded above.  The applicant had invited the judge to infer that the impact would be significant.  At the least, the documentary evidence suggested that the requirement for a criminal history check applied in respect of one position for which the applicant had applied for which the salary range was “$108,936 - $116,690 per annum + super”.
    2. But the Crown had disputed the extent of the inference which the sentencing judge should draw from the material and submitted that he should not conclude that the extent of the impact was such as would outweigh a consideration of the seriousness of the offence.
    3. While the sentencing remarks reveal that the sentencing judge stated that he took into account “the impact recording a conviction will have on [the applicant’s] economic and social wellbeing, or chances of finding employment”, it is not apparent what he took into account because he made no finding resolving what had been the factual dispute before him or about the extent of the impact.  
    4. Whilst this court has previously observed that “on occasions, what is said by a judge in the course of argument can make it sufficiently clear that something has been considered, although it is not specifically discussed in the reasons themselves” (see R v CCF [2018] QCA 285 per McMurdo JA, with whom Sofronoff P and Morrison JA agreed, at [14]), one cannot reason in the same way to conclude that a judge must have made a finding which was not made in the judge’s reasons.
    5. The necessity for the sentencing judge to give reasons for his decision required him to make a finding as to the extent of the impact which recording a conviction might have on the applicant’s economic and social wellbeing or chances of finding employment and he did not make that finding.
23. [23]
    Fourth, the reasons do not address the submission that in light of what the sentencing judge should have found concerning that issue, the impact of recording a conviction would not be appropriately proportionate to what the sentencing judge should conclude was the nature and seriousness of the offence.   That is particularly so when the judge determined that having regard to the nature and seriousness of the offence, the sentencing judge regarded it as appropriate to impose only the comparatively minor fine of $1,500.
24. [24]
    To my mind, these considerations reveal the inadequacy of reasons for which the applicant contended.  The reader is left in the dark as to what considerations were balanced against what the judge regarded as the seriousness of the offence and why the disproportionate argument was rejected.  I reach this conclusion without needing to consider the proposed further evidence.  I would not, in any event, regard the interests of justice as served by admitting the further evidence on the question whether there should be leave to appeal the sentence or whether the sentencing discretion miscarried.
25. [25]
    The sentencing discretion having miscarried, it falls to this court to exercise its own discretion on the question whether to record a conviction.  In relation to the fresh exercise of the sentencing discretion it is appropriate to have regard to the further evidence which the applicant seeks to place before this Court and I would give leave to rely on it for that purpose.
26. [26]
    Submissions before this Court focussed on the question whether a conviction should have been recorded.  No criticism was directed to the primary judge’s choice to impose a minor fine with time to pay for the offending conduct.  However in R v Hatahet (2024) 98 ALJR 863; [2024] HCA 23 Beech-Jones J recently reminded us at [69]: “The independent exercise of the sentencing discretion that the court is obliged to undertake if it finds error cannot be performed by “merely adjusting the sentence actually passed to allow for the error identified””.  I think the amount of the fine and the time given to pay were appropriate parts of the sentence which should have been imposed in this case and I would take the same approach in my own exercise of the sentencing discretion.  On the question of whether the appropriate balancing of considerations should lead to a conclusion that a conviction should be recorded I take the following approach:

    1. The complainant was an adult female who consented to the taking of the photographs, including photographs which included nudity.  During the process of the taking of the photographs, the applicant touched her body, without her consent, by slowly running his fingers up from her groin across her stomach area to her breasts, but without touching her breasts.  But once one accepts – as one must in light of the express Crown disclaimer – that there was not any sexual element to the touching, it becomes difficult to regard the offending as a particularly serious example of common assault by a photographer on a model.  Hence my conclusion that the punishment which is appropriate is that of a comparatively minor fine.
    2. I would regard the victim impact statement as a reflection of the fact that the complainant did not share the Crown’s preparedness to disclaim any sexual element to the touching and would not give it the weight it might have been given if there had been no such disclaimer. 
    3. The applicant worked as a consultant in the IT field.  Even having regard only to the evidence which was before the sentencing judge I would infer that it was likely that Government agencies and larger corporations and institutions would require criminal history checks to be done in relation to proposed engagements of people like the applicant, and that a record of a conviction would adversely affect the applicant’s economic prospects for positions of significant level of remuneration. 
    4. But that conclusion is strongly supported by the further evidence placed before this Court.  That evidence supports the significant nature of the impact on the applicant’s prospects of further engagements by such employers.  Accordingly, I would find that it was likely that recording a conviction would significantly impact on the applicant’s economic or social wellbeing and on his chances of finding employment. 
    5. The applicant was a mature man; had no criminal history; pleaded guilty and facilitated the administration of justice.  There was no challenge to the sentencing judge’s finding that he should be regarded as expressing some remorse.  He no longer engaged in the photography that he had engaged in.  There was no reason to think that he posed any on-going risk to the community and that there was any likelihood of his re-offending.  The need for the community to be informed of his offending is reduced.
    6. Having regard to the foregoing considerations, it seems to me that the submission advanced by the applicant both below and in this Court must be accepted. Recording a conviction in the particular circumstances of this case would result in adverse effect on the applicant which was disproportionate to the seriousness of the particular offending.  But more importantly, the public interest is not served by requiring a conviction to be recorded in this case and will be better served by promoting the prospect that the applicant can be a contributing member of the community who assists in looking after his family.  Accordingly, I would not record a conviction in this case.
27. [27]
    The result is that I would make the following orders:

1. Grant leave to adduce the further affidavit of the applicant, but only in relation to the fresh exercise of the sentencing discretion by this Court.
2. Grant leave to appeal against the sentence imposed on 22 March 2024.
3. Allow the appeal.
4. Set aside that part of the sentence which recorded a conviction, but otherwise confirm the sentence. 

28. [28]
    FREEBURN J:  I also agree with Bond JA.